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Unlawful Filming of Another - What Is This Charge?

Posted on Oct 15, 2014 4:25pm PDT

Like most states, Virginia makes it a crime to videotape or photograph an individual without their knowledge while they are naked or in some state of undress. While there are numerous exceptions to this rule, and it can be difficult for prosecutors to prove, the penalties for conviction are quite severe.

Virginia Code §18.2-386.1 makes it unlawful for any person to "knowingly and intentionally videotape, photograph, or film an non-consenting person" where that person is nude, clothed only in underwear, or in a condition exposing genitals, buttocks, or the female breast. This law applies in a "restroom, dressing-room, locker room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location." For the law to apply, the person filmed must have a "reasonable expectation of privacy" at the time of filming.

Violation of this statute is a Class 1 misdemeanor punishable by up to 12 months in jail and a fine of up to $2,500. However, if the person filmed or photographed is under 18 years of age, the charge is a Class 6 felony, punishable by up to 5 years in the penitentiary. Regardless of the degree, a third conviction will result in mandatory sex offender registration.

Obviously, this is an extremely serious charge, but there is much to be done in defending this allegation. First and foremost, the filming must have been non-consensual at the time of filming for the statute to apply. Many people who are willing participants in videotaping of sexual acts have second thoughts later and wish they hadn't participated. But the issue is whether the individual was fine with being filmed at the time the film was taken, not whether they regretted it later. Secondly, if the person does not have a reasonable expectation of privacy this section does not apply. For example, a person intentionally exposing themselves in public who is photographed without their knowledge or consent while doing so is not protected by this statute; and those who photograph or film such acts are not subject to prosecution. Like any case involving photography or video, there is always an issue of proving who took the video, and whether that person did so "knowingly and intentionally."

The bottom line is that this is an exceedingly serious charge, and one that many people simply are not aware of. People think that they are free to videotape and record whatever they wish within their own homes, but this simply is not the case. With the proliferation of cell phones and computers that can produce clandestine recordings with relative ease, there is more and more of this sort of thing going on.

If you are facing this charge, you must contact an experienced criminal defense attorney. Do not delay, as much can be done in the initial stages to deal with this offense. Contact us today, we are here to help!

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